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Tuesday, 27 October 2009
Page: 11139


Mr CRAIG THOMSON (7:26 PM) —I rise to support the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009. The Roman philosopher Seneca once said, ‘He has committed the crime who profits by it.’ This bill aims to make it much more difficult for criminals and their friends, associates and families to profit from crime. The bill will amend the Proceeds of Crime Act 2002 to strengthen the criminal assets confiscation regime.

The Prime Minister’s national security statement recognised that organised crime is a growing concern in Australia and a priority issue for this government to address. The Australian Crime Commission estimates that organised crime costs Australia in excess of $10 billion every year. Organised crime is also adaptable and sophisticated and the associated risks carry significant consequences for businesses and the Australian community.

According to the commission’s most recent report these costs are realised in many different ways, including loss of legitimate business revenue, loss of taxation revenue, expenditure on law enforcement and regulatory efforts and managing ‘social harms’. This of course refers to when criminal activity compromises the health, safety and wellbeing of individuals and communities. Let us take a little more detailed look at what law-enforcement agencies like the Australian Crime Commission are up against when it comes to organised crime.

Through much experience of fighting crime, gathering intelligence and convicting criminals over many years, our key agencies know that organised crime groups engineer much of the nation’s serious crime. These groups are often systematic, well-planned enterprises focusing on making money. In many ways they can be compared with conventional businesses, except of course their activities and profits are illicit. Organised crime groups are formidable in terms of their capabilities, resources and resilience. These groups continue to show willingness to plan carefully, to adapt swiftly to changing law enforcement or regulatory responses and to be inventive in their search for new opportunities for profit.

Some of the more enduring networks effectively adopt risk mitigation strategies to protect their illicit profits, and where necessary they behave patiently to ensure the security of the logistic chains and to test to law-enforcement responses. Most groups showed few inhibitions in acquiring expertise from wherever it is available; however, some groups do prefer to deal predominantly with trusted members of their own ethos or ethnicity.

The willingness and ability to engage in corrupt activities is a strong characteristic of many organised crime groups, as is their broad geographical reach. Most significant organised crime groups operating in Australia in 2008 were known to have an international dimension to their interests, although the level of direct involvement in transnational activities varies markedly between groups.

Governments—and Australia is no exception—will continue to face many challenges as organised crime groups expand their reach and spread. While the strategies and methods organised crime groups use to carry out serious crimes remain largely consistent, they may alter their approach in response to a threat from law enforcement to changing local or global circumstances or to a threat from a competitor.

The ability to quickly adapt is a key feature of the current criminal environment and presents a major and ongoing challenge for law enforcement agencies. Interestingly, organised crime groups use new technologies to advance their activities. Organised crime has consistently proven to be an early adapter of new technologies. While this presents challenges for law enforcement, new technologies can also present opportunities for law enforcement to penetrate criminal networks.

Not all serious crime is highly organised or undertaken by sophisticated criminal networks. Some people with no criminal background use their particular leverage, knowledge or contacts to commit crimes within their specialised fields. In particular, some elements of the financial service sector can be vulnerable to expert manipulation and other fraudulent actions. Important steps towards improving collaboration between a range of law enforcement, government and industry stakeholders have strengthened the overall response to the threat from organised crime, but addressing the fluid and evolving nature of organised crime will require continued effort and commitment across all sectors. In some areas alternative approaches, such as early prevention and intervention strategies, may be needed more. Increased community awareness is also often required.

The Australian Crime Commission has found that, while organised crime groups within Australia are diverse and flexible, high-threat organised crime groups have some consistent characteristics and strategies, contributing to their capabilities and success. Generally, high-threat organisation crime groups: have transnational connections; have proven capabilities and involvement in serious crime of high-harm levels, including illicit drugs, large-scale money laundering and financial crimes; have a broader geographical presence and will generally operate in two or more jurisdictions; operate in multiple crime markets; are engaged in financial crimes, such as fraud and money laundering; intermingle legitimate and criminal enterprises; are fluid, adaptable and able to adjust activities to new opportunities or respond to pressure from law enforcement or competitors; are able to withstand law enforcement interventions and rebuild quickly following disruption; are increasingly using new technologies; and use specialist advice and professional facilitators.

Successful organised crime groups have a presence across many sectors and crime types but are typically involved in some form of financial crime or money laundering. They will also have some connection with the illicit drug market. They are likely to be based offshore or connected to an offshore criminal group. They will have the ability to operate in several illicit markets and will move between criminal activities. You can get the idea of the extent and the impact of organised crime in this country from the overview by the Australian Crime Commission. Obviously making money, and in many instances converting that money to assets, is the key driving force behind organised crime.

Let us look more closely at this bill and what it aims to achieve. The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 implements legislative measures that form part of the national response to serious and organised crime agreed by the Standing Committee of Attorneys-General. The bill will strengthen criminal assets confiscation and insert unexplained wealth provisions. The unexplained wealth provisions will permit a court to confiscate a person’s wealth if the person is unable to demonstrate that the wealth was not derived from offences within the Commonwealth constitutional power. The bill will introduce model investigative powers for controlled operations, assumed identities and witness identity protection. These powers will enhance the ability of police to undertake undercover investigations and to target organised crime. The bill will facilitate greater use of telecommunications interception for criminal organisation offences. The bill will also target persons who engage in criminal activity as part of a group.

Controlled operations laws enable law enforcement operatives to be authorised to engage in conduct which may constitute an offence in order to investigate serious offences. The current controlled operations regime is set out in the Crimes Act 1914. The bill will replace a part of that act with the model cross-border controlled operation which was agreed to by the Standing Committee of Attorneys-General in 2004. It will also recognise controlled operations authorisations issued by states and territories to provide state and territory officers with protection from liability from Commonwealth offences. This will strengthen the ability of law enforcement agencies to conduct effective operations targeting organised crime.

Assumed identity laws enable the use of a false identity by an undercover operative engaged in investigating crimes, infiltrating organised crime groups and gathering intelligence. The bill will replace the current Commonwealth regime for assumed identities in the Crimes Act. The new regime will allow Commonwealth operatives to access state and territory identity documents to build a more robust assumed identity. This will assist operatives to infiltrate the more highly organised and sophisticated criminal groups. Importantly, implementation of the model laws will also provide for the mutual recognition of assumed identities acquired or used under a state or territory corresponding law.

Let us now also have a look at the witness identity protection element of this bill. The bill will replace the current witness identity protection scheme in a section of the Crimes Act with provisions consistent with national model legislation on witness identity protection. The intent of the model legislation is to harmonise, as closely as possible, witness identity protection schemes across Australia. The bill will create a mechanism for protecting the true identity of law enforcement officers, intelligence officers, foreign law enforcement officers or civilian witnesses who have lawfully obtained assumed identities or have been participants in controlled operations and are required to give evidence in legal proceedings.

Telecommunications interception plays a very important role in these changes. Part of the proposed national response to address organised crime involves the introduction of criminal organisation offences—for example, associating with a criminal organisation or instructing the commission of an offence for a criminal organisation. Some of these offences may carry a maximum penalty of five years imprisonment, which is below the seven-year imprisonment threshold for the use of telecommunications interception. The bill will amend the definition of ‘serious offence’ in the Telecommunications (Interception and Access) Act 1979 to facilitate greater access to telecommunications interception for criminal organisation offences.

This bill will also amend a part of the Criminal Code Act 1995 to include a new ground for extending criminal liability in relation to persons who jointly commit offences. This is consistent with the common law. The extension of criminal liability under the Criminal Code to cover joint commission of criminal offences will target persons who engage in criminal activity as part of a group. The provision will enable the prosecution to obtain higher penalties for offenders who commit crimes in organised groups by aggregating the conduct of offenders who operate together.

The measures governments take through their law enforcement and crime-fighting agencies will never be enough to completely rid society of organised and serious crime. Organised crime operates within and alongside legitimate business, making industry and the public potential sources of information about organised crime. Increased public awareness of the indicators of organised criminal activity may help to support prevention and reduction of such activity. Much fraud is rendered ineffective when the potential victim is able to recognise the signs of an attempted crime. Identity crime can be prevented through improvements to identity verification and public education. Awareness and understanding of the threats of organised criminal activity will continue to be a key component of the fight against organised crime in Australia.

There are also specialised strategies in place. Organised crime has the capability to resist law enforcement efforts. Law enforcement uses special tools including coercive powers, covert intelligence, surveillance and a range of specialised analytical and investigative techniques to overcome this resistance. Law enforcement responses will, by necessity, continue to be predominately reactive and directed toward issues affecting single jurisdictions. However, proactive and specialised law enforcement approaches are critical to the success of efforts to combat organised crime. This includes ongoing collaboration between state, territory and federal law enforcement agencies. There are current operations, investigations or task forces addressing amphetamines and other synthetic drugs, illicit firearms markets, high-risk crime groups, tax fraud and other financial crimes, outlaw motorcycle gangs, crime in the private security industry, and Indigenous violence and child abuse.

The Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 aims to help our agencies better fight crime by making it harder for criminals to profit, as well as bringing the perpetrators of organised crime to justice. I commend the bill to the House.